Terms and Conditions
1.1 Application of these Terms and Conditions
For the purposes of this agreement, “the Client” is the applicant named on the account with the Supplier or where no account exists then on the Quote or Work Authorisation provided by the Supplier to the Client and “the Supplier” is CUTTING EDGE CABINETS ABN 83 104 560 581 and its successors and assigns or any person acting on behalf of and with the authority of the Supplier. In this agreement “Components” mean hinges, door handles, drawer runners and associated hardware; “Goods” means kitchen cabinetry and bench tops; and “Work” is the manufacture of flat pack kitchen cabinets and bench tops.
2. TRADE SERVICES ACKNOWLEDGEMENT
The Client acknowledges Goods and Components are sold on a supply only basis. The Supplier may recommend cabinet installers, tilers, electricians and other tradesmen to provide services the Client may required. The Supplier has every confidence in the tradesmen recommended by the Supplier and engaged by the Client, but as a Supplier only, the Supplier will not be responsible for delays, defaults or claims of any description associated with any such trade services.
3.1 Supplier Supply QuoteThe Supplier shall give the Client a quote specifying the Goods and Components to be supplied and an estimate of the Supplier’s charge for such Goods and Components.
3.2 Acceptance by the Client
3.2.1 Where the Supplier has given the Client a quote the Supplier need not commence Work until the quote has been accepted by the Client. The Client shall accept the quote by signing and returning a true copy of the quote accompanied by a purchase order number if applicable.
3.2.2 Acceptance by the Client of the quote will constitute acceptance by the Client of these terms and conditions;
3.2.3 Quotes are valid for thirty (30) days only unless an extension has been authorised by the Supplier.
3.2.4 The Client warrants that it has not relied on any representation by the Supplier other than as supplied in writing in the quote.
3.2.5 The client acknowledges that in certain circumstances the Contractor may substitute products at its discretion. If this is done it will have no impact upon warranty, performance or overall look of the cabinetry,
3.3 Supplier May Revise Quote
The Supplier may amend the quote after a period of thirty (30) days from the date of the signed acceptance of the quote to take into account any rise or fall in the cost of performing the Work and the Supplier shall notify the Client of such amendment as soon as practicable thereafter. The Supplier will not be obliged to commence Work until such time as the Client agrees to the amendment of the quote.
3.4.1 Where there are variations to the original quote the Client shall indemnify the Supplier from any additional cost incurred by the Supplier, should the Client increase the scope of the Goods and Components to be provided by the Supplier.
3.4.2 Variations within a period subject to a progress payment shall be payable at that time and no later.
The copyright in all plans, sketches, design ideas and custom made solutions which appear in the Supplier’s quote shall be the property of the Supplier.
The Client must keep confidential and not use any ideas communicated by the Supplier to the Client without the Supplier’s prior consent.
4.1 Cartage, freight and transit insurance will be the Supplier’s care unless otherwise arranged and specified in writing.
4.2 If delivery of the Goods and Components is to be made to the Client’s nominated address, the Client shall make all arrangements necessary to take delivery of the Goods and Components whenever they are tendered for delivery. Failure to do so may incur additional costs.
4.3 Delivery of the Goods made to the Client at the Supplier’s address will be on an agreed date and failure by the Client to uplift completed Goods from the Supplier’s address on this agreed date will entitle the Contractor to raise an invoice subject to the Supplier’s payment terms (as if the Client had taken possession of the Goods). In addition the Client may incur storage charges estimated on a daily basis.
4.4 Delivery of Goods and Components to a third party and/or site nominated by the Client is deemed to be delivery to the Client for the purpose of this agreement.
4.5 The failure of Supplier to deliver shall not entitle either party to treat this agreement as repudiated. The Supplier shall not be liable for any loss or damage whatsoever due to the failure by the Supplier to deliver the Goods due to reasons beyond the Supplier’s control.
The Client shall inspect the Goods and Components on delivery and shall within seven (7) days of delivery notify the Supplier in writing of any alleged damage or failure to comply with the description. The Client shall afford the Supplier an opportunity to inspect the Goods and Components within a reasonable time following delivery if the Client believes the Goods and Components are defective in any way. If the Client shall fail to comply with these provisions the Goods and Components shall be conclusively presumed to be in accordance with these terms and conditions and free from any defects.
6.1 Time for Payment
The Client must, within the time specified in the quote or work authorisation, upon the Client receiving the Supplier’s tax invoice or payment claim pay the Supplier the total amount set out in the tax invoice or payment claim.
The Supplier may charge interest at two (2%) percent above the commercial lending rate of the National Australia Bank (NAB) calculated on a daily basis on amounts not paid within the time specified in the Supplier’s tax invoice or payment claim.
The Supplier will require a deposit from the Client and the time for such payment will be specified in the Supplier’s quote or work authorisation. The Client acknowledges the Supplier is under no obligation to undertake any order as requested by the Client until the deposit is received by the Supplier in full and when all details pertaining to contract are finalised. In the event of default as to payment owing to the Supplier on the part of the Client, the Supplier shall be entitled to forfeit the deposit and claim any profit or margin contemplated by or allowed for in the contract in addition to any remedy available to the Supplier at law or in equity.
6.4 Progress Payments
When an agreed progress payment is not honoured by the Client, the Supplier reserves the right to halt any further Work until such time as the outstanding payment is forthcoming.
6.5 Remedial Work (Commercial Orders)
The Client hereby agrees that in the event remedial work is required for Work completed to date, the Client’s project manager shall only hold back the value/amount (agreed by both parties) of having the Work replaced and not the entire due payment. The balance must be paid on receipt of the Supplier’s invoice or payment claim.
The Client must pay to the Supplier any costs, expenses or losses incurred by the Supplier as a result of the Client’s failure to pay to the Supplier all sums outstanding as owed by the Client to the Supplier including without limiting the generality of the forgoing any debt collection and legal costs incurred in enforcing payment on a solicitor and own client basis.
The Client shall reimburse the Supplier for any costs, expenses or losses incurred by the Supplier should the Client cancel the accepted quote or work authorisation. The time for payment for such cancellation shall be seven (7) days from the Supplier’s invoice.
7. PAYMENT CLAIM
On completion of the Work (and if applicable) the Supplier shall make a payment claim in accordance with The Building and Construction Industry Payments Act 2004. The Client must respond appropriately and within the time specified in the Act.
The Client must pay an amount equivalent to the amount payable by the Supplier as GST on supply made by the Supplier to the Client under this agreement.
The risk in the Goods and Components shall pass to the Client upon delivery to the Client or to a third party nominated by the Client.
10. RETENTION OF TITLE
Notwithstanding the delivery or installation of the Goods and Components, title in any particular Goods and Components shall remain with the Supplier until the Client has paid and discharged any and all monies owing pursuant to any invoice issued by the Supplier for the Goods and Components, including all applicable GST and other taxes, levies and duties. Where the Goods and Components have been on sold by the Client, the Client will be taken to hold the proceeds of sale of such Goods and Components upon trust for the Supplier and to account to the Supplier for these proceeds. Any payment made by or on behalf of the Client which is later avoided by the application of any Statutory Provisions shall be deemed not to discharge the Supplier’s title in the Goods and Components nor the Client’s indebtedness to the Supplier and, in such an event, the parties are to be restored to the rights which each respectively would have had if the payment had not been made.
The Client acknowledges that it is in possession of the Goods and Components solely as Bailee until payment of all invoices and progress claims for the Goods and Components is made pursuant to clause 10.1 and until that time:
a) the Client is not entitled to sell the Goods or Components but only in the ordinary course of business;
b) the Client must not encumber or otherwise charge the Goods and Components; and
c) the Client shall be fully responsible for any loss or damage to the Goods and Components whatsoever and howsoever caused following delivery of the Goods and Components to the Client.
The Client hereby irrevocably grants to the Supplier the right, at its sole discretion, to remove or repossess any Goods and Components from the Client and sell or dispose of them, and the Supplier shall not be liable to the Client or any person claiming through the Client and the Supplier shall be entitled to retain the proceeds of any Goods and Components sold and apply same towards the Client’s indebtedness to the Supplier. If the Client commits an act of bankruptcy, enters into any form of administration or liquidation, makes any composition or arrangement with its creditors, ceases to carry on business or breaches any fundamental clause of this agreement, then the Supplier may, without prejudice to any other remedies it may have, repossess any Goods and Components delivered to the Client on any account which has not been paid in accordance with the terms and conditions herein and commence proceedings to recover the balance of any monies owing the Supplier by the Client.
11.1 The warranty on the Supplier’s workmanship shall be for a period as specified on the Supplier’s website, Quote or Work Authorisation.
11.2 Any warranty as to the Components on the part of the Client shall be the same as the written warranty provided by the Manufacturer to the Supplier on or before delivery of the Components.
11.3 The Client shall indemnify the Supplier against all warranties attached to products used in the Work, but purchased independently of the Supplier.
11.4 The Supplier warrants that its Work will be carried out in accordance with all relevant laws in an appropriate and skilful way, in accordance with the plans and specifications (where relevant) using materials that are good and suitable for the purpose for which they are intended to be used.
11.5 The Supplier reserves the right to make null and void the warranty should the Goods or Components be modified, altered, damaged or put to any undue stress other than in the way the Goods and Components were designed to perform.
11.6 In respect of all claims the Supplier shall not be liable to compensate the Client for any delay in either replacing or repairing the workmanship and/or Goods and Components or in properly assessing the Client’s claim.
12.1 Non-excludable Rights
The parties acknowledge that, under applicable State and Commonwealth law, certain conditions and warranties may be implied in these terms and conditions and there are rights and remedies conferred on the Client in relation to the provision of the Goods and Components or of services which cannot be excluded, restricted or modified by the agreement (“Non-excludable Rights”).
12.2 Disclaimer of Liability
The Supplier disclaims all conditions and warranties expressed or implied, and all rights and remedies conferred on the Client, by statute, the common law, equity, trade, custom or usage or otherwise and all those conditions and warranties and all those rights and remedies are excluded other than any Non-excludable Rights. To the extent permitted by law, the liability of the Supplier for a breach of a Non-Excludable Right is limited, at the Supplier’s option, to the supplying of the Goods and Components again or payment of the cost of having the Goods and Components supplied again.
12.3 Indirect Losses
Notwithstanding any other provision of these terms and conditions, the Supplier is in no circumstances (whatever the cause) liable in contract, tort including without limitation, negligence or breach of statutory duty or otherwise to compensate the Client for:
a) any increased costs or expenses;
b) any loss of profit, revenue, business, contracts or anticipated savings;
c) any loss or expense resulting from a claim by a third party; or
d) any special, indirect or consequential loss or damage of any nature whatsoever caused by the Supplier’s failure to complete or delay in completing the Work or to deliver the Goods and Components.
12.4 Force Majeure
The Supplier will have no liability to the Client in relation to any loss, damage or expense caused by the Supplier’s failure to complete the Work or to deliver the Goods and Components as a result of fire, flood, tempest, earthquake, riot, civil disturbance, theft, crime, strike, lockout, breakdown, war, the inability of the Supplier’s normal suppliers to supply necessary material or any other matter beyond the Supplier’s control.
13.1 The Client hereby authorises the Supplier to collect, retain, record, use and disclose commercial and/or consumer information about the Client’s credit worthiness, credit standing, credit history or credit capacity, in accordance with the Privacy Act 1988, to persons and/or legal entities who are a solicitor or any other professional consultant engaged by the Supplier, a debt collector, credit reporting agency and/or any other individual or organisation which maintains credit references and/or default listings.
13.2 The Supplier may give information about the Client to a credit reporting agency for the purposes of obtaining consumer and commercial credit reports and/or lodging consumer and commercial defaults on the Client’s credit file. This information may be given before, during or after the provision of credit to the Client and will be in accordance with the Privacy Act 1988 and subsequent amendments.
14. SECURITY AND CHARGE
The Client hereby charges all property, both equitable and legal, present or future of the Client in respect of any monies that may be owing by the Client to the Supplier under the terms and conditions or otherwise and hereby authorises the Supplier or its solicitors to execute any consent form as its attorney for the purpose of registering a caveat over any real property owned by the Client at any time or to register this charge over assets of the Client.
15. GENERAL MATTERS
15.1 Client Acknowledgment
Imperfections on bench tops and two pack paintwork may be evident in certain light. In most cases this will be accepted industry standards and the Client agrees to this assertion.
Any provision in these terms and conditions which is invalid or unenforceable in any jurisdiction must be read down for the purposes of that jurisdiction, if possible, so as to be valid and enforceable. If that provision cannot be read down then it is capable of being severed to the extent of the invalidity or unenforceability without affecting the remaining provisions of these terms and conditions or affecting the validity or enforceability of that provision in any other jurisdiction.
15.3 Governing Law and Jurisdiction
These terms and conditions are governed by the laws of the State of Queensland and all disputes arising between the Client and the Supplier will be submitted to the Brisbane Registry of any Court as is competent to hear the matter.